Tuesday, March 31, 2009

In my Friday roundup, I mentioned Jim Webb's introduction of the National Criminal Justice Commission Act of 2009, which seeks to establish a commission "made up of recognized criminal justice experts, and charged with examining a range of policies that have emerged haphazardly across the country and recommending reforms. In addition to obvious problems like sentencing, the commission would bring much-needed scrutiny to issues like the special obstacles faced by the mentally ill in the system, as well as the shameful problem of prison violence." (NYT)

The bill represents a tremendously courageous act on his part. Glen Greenwald over at Salon.com explains why that is in a lengthy post that is well worth a read:

It's hard to overstate how politically thankless, and risky, is Webb's pursuit of this issue -- both in general and particularly for Webb. Though there has been some evolution of public opinion on some drug policy issues, there is virtually no meaningful organized constituency for prison reform. To the contrary, leaving oneself vulnerable to accusations of being "soft on crime" has, for decades, been one of the most toxic vulnerabilities a politician can suffer (ask Michael Dukakis). Moreover, the privatized Prison State is a booming and highly profitable industry, with an army of lobbyists, donations, and other well-funded weapons for targeting candidates who threaten its interests.

Adds Greenwald,

After decades of mindless "tough-on-crime" hysteria, an increasingly irrational "drug war," and a sprawling, privatized prison state as brutal as it is counter-productive, America has... become what Brown University Professor Glenn Loury recently described as a "a nation of jailers" whose "prison system has grown into a leviathan unmatched in human history."

It is the existence of this detestable myriad of reasons that brings the cause of criminal justice reform into higher relief. We have been supporters of criminal justice commissions for some time, but it is the realization of our wildest dream that a national reform commission should be formed under the leadership of an intrepid first-term Senator.

The New York Times has thrown their unequivocal support behind the bill with an editorial on Sunday. Ryan Grim authored a piece at the Huffington Post that lays out the bipartisan support that has quickly formed behind the bill, including that from senior Democrats, libertarian pundits, and traditional conservatives as well. Observes the New York Times, "Judging by the bipartisan support in the Senate, a national consensus has emerged that the criminal justice system is broken."

To visit Senator Webb's official page on the National Criminal Justice Commission Act of 2009, click here.

Monday, March 30, 2009

Allow us to give ourselves a pat on the back this morning as we received some coverage in the Orlando Sentinel this morning, a paper with a hefty circulation of 230,000 people. The article is located here.

"Depending on whether you talk to people who are prosecution-oriented or defense-oriented, you're going to get widely divergent numbers," said Michael Seigel, a University of Florida law professor. "The criminal justice system does a pretty good job; there isn't widespread error. But there is error ... one person who is innocent and is in jail is one too many."

That's where the Innocence Project of Florida comes in. Since its creation, it has helped exonerate seven men who, among them, were incarcerated for 144 years.

And a good quote from our Executive Director, who points out a mistake in a common way of understanding our place in the process:

"When we exonerate someone, people say the system worked. The system did not work; the system failed," said Seth Miller, who directs the Innocence Project from Tallahassee. "These folks have been exonerated not because of the system but in spite of the system."

If "the system worked," we wouldn't have a reason for being. We exist to right the wrongs that get committed by the system – even when they are no one's fault – and to help to fix the system to prevent wrongful convictions from taking place.

Friday, March 27, 2009

For one, I've been blogging a lot lately about nascent death penalty reforms around the country and around the world. A Maryland bill I blogged about earlier harshly restricting the application of the state's death penalty has passed the state's House. Governor O'Malley has indicated he will sign the bill.

GenPop has a pretty outrageous post about the unfortunate citizens of tiny Parke County, Illinois, population approximately 17,000. The county was forced to raise taxes on its citizens in order to try a death case, costing in excess of $500,000. As Courtney points out,

Imagine being anti-death penalty in that county. Imagine being anti-death penalty and someone who's already suffering financially because of the state of today's economy, and having your taxes raised to put someone to death. That is so backward, barbaric and wrong.

A study by the ACLU of Northern California has concluded that "The 11 new additions to [California's] death row add almost $1 million to the annual cost of housing people on death row, now totaling $61.2 million more each year than the cost of housing in the general population." Speaking of an unfair burden levied iniquitously on the citizens of California, "of California’s 58 counties, only 10 counties accounted for nearly 83% of death sentences for 2000 to 2007, and 30 counties had not had a single death sentence since 2000." That means one half of the counties are forced to pay into a system they haven't used in almost 10 years, so that a minority of the counties can put their convicts to death.

Finally, congratulations to Innocence Project founders Barry Scheck and Peter Neufeld. They are being awarded the 2009 Thomas Jefferson Foundation Medal in Law this April.

The Thomas Jefferson Medal in Law and its counterparts in architecture and civic leadership are the highest external honors bestowed by the University [of Virginia], which grants no honorary degrees. The awards recognize the achievements of those who embrace endeavors that Jefferson — author of the Declaration of Independence, third U.S. president and founder of the University of Virginia — excelled in and held in high regard.

Thursday, March 26, 2009

The results of the first behavioral study to investigate whether people will provide false secondary confessions raises significant concerns about the use of such evidence when informants are offered incentives. The study was conducted by psychological researchers at the University of Arkansas.

A "secondary confession" is a polite name for snitching. A news article on the study is here. The study is now published in the Journal of Law and Human Behavior in an article titled “Snitching, Lies and Computer Crashes: An Experimental Investigation of Secondary Confessions.”

The blog also has a fuller explanation of how the study worked, but the bottom line is the bottom line. The authors of the study provide these suggestions:

The concern is partly based on confessions being assumed to be the end-all and be-all of trial evidence, when at least in the case of secondary confessions they should be treated as hearsay,” Swanner said.

She and Beike suggested several safeguards, including video recordings of all interviews and interrogations of informants and suspects as well as pretrial hearings and expert testimony to allow jurors to better assess the validity of secondary confessions entered as evidence.

“It is essential for jurors, prosecutors and judges to be informed about the potentially biasing nature of incentives to confess,” they concluded. “Snitches may indeed lie or come to believe a falsehood about another to be the truth. Jurors must be able to consider this possibility as they make their verdicts.

To learn more about what can be done to prevent false confessions as well, read our page here.

USA Todayreports that the New Hampshire House of Representatives has voted to repeal the death penalty. However, "Gov. John Lynch, a Democrat, is certain about the death-penalty repeal: He said he would veto it if it reaches his desk." You can call Governor Lynch at this number: (603)271-2121 or email him here and tell him to follow the example of New Mexico and the rest of the civilized world by supporting the abolition of state-sponsored murder.

Wednesday, March 25, 2009

Two reminders today about why the arrival of reliable DNA testing is quite possibly the most important advent in the history of criminal justice. The Richmond Times-Dispatch out of Virginia is reporting that a man found guilty of a rape in 1984 was wrongfully convicted and incarcerated. DNA testing showed the true perpetrator to be one of the area's most notorious rapists, Leon Davis. Thomas Haynesworth was the man wrongfully convicted.

Reached last week by telephone at the Greensville Correctional Center, Haynesworth said of Davis, "I knew all along he was the man. I told my lawyer. I told [police]. He lived right down the street from me."

"I told them: 'This man fit the description.' But nobody ever listened to me," he complained. "Everybody said we looked alike. Only difference between me and him, he is taller and weighed more," said Haynesworth.

And cheers to the Virginia Department of Forensic Science:

The recent DNA testing was performed as part of the Virginia Department of Forensic Science's post-conviction project aimed at clearing people who may have been wrongly convicted from 1973 through 1988, before forensic DNA testing was widely available.

Similar programs should be in place in every jurisdiction throughout the country, as citizens anywhere can be victims of wrongful incarceration.

Secondly, in Washington state, a man who was arrested and held for 17 days for the rape of an 11-year-old girl in 2007 has filed a federal lawsuit against the local police department alleging wrongful imprisonment. David Lynch was released from prison, his charges dropped, after DNA tests from the rape excluded him as a possible rapist.

There are always celebrations fanfare when a person is released after serving X years behind bars for a crime they didn't commit. Sometimes we might forget that the real reason we work hard to shed light on these abuses and reform the system is to prevent wrongful convictions from happening in the first place. Though spending 17 days wrongfully in jail is certainly a harrowing experience, it is far and away a better thing than spending 27 years behind bars for a crime you didn't commit.

Update: David Lynch's story is similar to two others that were reported in Florida very recently. The first, out of Tampa, is of Kenneth Robinson, who was arrested for a burglary he did not commit and released after DNA testing proved as much. The second is of Wade Jackson in Brevard county, Florida, who was released after spending 17 months in prison as a suspect for a murder he did not commit.

Tuesday, March 24, 2009

Last week, Governor Bill Richardson of New Mexico signed HR 285 to abolish the death penalty in that state. Here are two more interesting developments in New Mexico, and one worldwide.

First, the Death Penalty Info Center has the details from a cost assessment that was prepared before New Mexico's legislature voted on HR 285. Despite the tiny but stubborn segment of the populace that still believes executing prisoners is cheaper than condemning them to life in prison, the report's unambiguous conclusions join the chorus of received wisdom that indicates that, in fact, implementing the death penalty is hugely expensive.

Citing just one part of the death penalty process, jury selection, the report noted, "Jury selection is a long, arduous process that potentially touches on the constitutional and religious rights of New Mexicans, and costs at least four times as much as a non-death first-degree murder case."

Secondly, Sentencing Law and Policy relays a news story about a New Mexico Sheriff looking into reinstating the death penalty by putting a "reverse referendum" on the ballot that would put the issue to the voters.

Bernalillo County Sheriff Darren White is looking into the possibility of petitioning to put the repeal of New Mexico's death penalty before the voters.

White said Thursday he's looking at a "reverse referendum" after the 2009 Legislature passed and Gov. Bill Richardson signed a measure that replaces lethal injection with life in prison without possibility of parole. The new law will apply to crimes committed as of July 1. "I think there's a lot of support out there" for an effort to reinstate the death penalty, the sheriff said.

That didn't take long.

Finally, Amnesty International released its annual report on capital punishment around the world. From the report:

Europe and Central Asia is now virtually a death penalty free zone following the abolition of the death penalty in Uzbekistan for all crimes. There is just one country left — Belarus — that still carries out executions.

In the Americas, only one state — the United States — consistently executes. However, even the USA moved away from the death penalty in 2008. This year, the smallest number of executions since 1995 was reported in the USA.

Friday, March 20, 2009

On Thursday, lawyers for several Guantanamo detainees asked a judge to rule that they are entitled to the protections of the Geneva Conventions. This represents the first test of the Obama administration to rule on the issue.

The Los Angeles Times ran an editorial today calling fingerprint matching an "inexact science." The subhead reads, "Although it is accepted that prints are unique, courts continue to have questions about using them to make IDs."

In 2007, a Maryland judge threw out fingerprint evidence in a death penalty case, calling it "a subjective, untested, unverifiable identification procedure that purports to be infallible."

The ruling sided with the scientists, law professors and defense lawyers who for a decade had been noting the dearth of research into the reliability of fingerprinting. Their lonely crusade for sound science in the courtroom has often been ignored by the courts, but last month it was endorsed by the prestigious National Academy of Sciences.

In 1905, Henry Faulds, a Scottish doctor and the first person to propose lifting and comparing fingerprints to solve crimes, wrote, "The least smudginess in the printing of them might easily veil important divergences ... with appalling results... [Police are] apt to misunderstand or overstrain, in their natural eagerness to secure convictions." The more things change, the more they stay the same, apparently.

In the wake of New Mexico's abolition of capital punishment, Stateline.org has an insightful survey of the complex and nuanced landscape of death penalty law around the nation. (By the way, as if I needed another reason to dislike Sarah Palin, she's apparently pushing to re-establish the death penalty in Alaska after it was abolished in 1957.)

Thursday, March 19, 2009

Last night, New Mexico Governor Bill Richardson signed HR 285, effectively abolishing the death penalty in that state, and making the most severe punishment available to prosecutors life without the possibility of parole. Richardson called signing the bill "the most difficult decision of my political life." We are glad he made the right choice.

“Faced with the reality that our system for imposing the death penalty can never be perfect, my conscience compels me to replace the death penalty with a solution that keeps society safe,” the Governor said. From the New York Times:

New Mexico has executed only one person since 1960, Terry Clark, a child killer, in 2001.

Two men are currently on death row, Robert Fry of Farmington and Timothy Allen of Bloomfield. Their sentences are not affected by the new law.

However, Sentencing Law and Policy asks whether the state can (or should) still go ahead with the executions of the two condemned currently in prison in that state. (Capital Defense adds that one additional capital case will go forward as planned.) Looking toward the future, SentLaw observes,

For a host of reasons, I think it is unlikely that New Mexico will ultimately execute the two men on its death row given that it has now abolished the death penalty. But perhaps it will try, and appellate courts will have to decide whether the state can go forward with executions after having taken this sentence off its books.

Another interesting legal issue could arise if New Mexico prosecutors want to still pursue death in response to a terrible murder committed over the next three months. As noted above, the law repealing the death penalty has an effective date of July 1, 2009. This would suggest that prosecutors still could (and arguably still should) seriously consider bringing capital charges against any and all terrible murderers who commits their crimes before the second half of this year.

Wednesday, March 18, 2009

Governor Richardson has until tonight at midnight to take action on House BIll 285, a the New Mexico legislature placed on his desk that would abolish the death penalty in his state. Yesterday, his office sent out this press release:

Governor Bill Richardson continues to hear from New Mexicans about a bill to repeal the death penalty and today released details on the more than 9,400 calls, emails and walk-ins he’s received on the issue. The Governor has heard from a total of 9,413 constituents who voiced their opinion on House Bill 285. Of those, 7169 were FOR the repeal of the death penalty and 2244 were AGAINST.

After lawmakers passed the bill on Friday, the Governor urged New Mexicans to call and email him on their thoughts of the bill. The Governor then met with more than 100 New Mexicans at his office on Monday, many of which had concerns either pro or con, the repeal of the death penalty. [emphasis mine]

That sounds like great news, that the citizens who weighed in were in favor of abolishing the death penalty by a margin of 3-1. Lest we get complacent, here again are the ways to contact the Governor:

Today, the Death Penalty Info Center has an update on the recent flurry of legislative activity around the country regarding the death penalty.

Many states are considering bills to abolish, reform, or expand the death penalty during current legislative sessions. Some recent developments include: New Mexico’s bill to abolish the death penalty passed the House and Senate and is awaiting Gov. Richardson's decision and signature, likely to come on March 18. In Colorado, a bill to abolish the death penalty and use the resources to pursue cold cases passed the House Judiciary Committee 7-4. In Kansas, the bill to abolish the death penalty passed the Senate Judiciary Committee 6-5, but the Senate voted to return the bill for further study. In Maryland, the bill to abolish the death penalty went to the full Senate where an amendment was passed to keep the death penalty but to require a higher standard of proof for guilt in capital cases. That amended bill is being considered by the House on March 17. Montana’s bill to abolish the death penalty passed the Senate Judiciary Committee, passed the Senate 27-23, and faces a House Judiciary Committee hearing March 25. A bill in Utah to allow the legislature to restrict death penalty appeals failed in the House.

Tuesday, March 17, 2009

Grits for Breakfasts posts a press release about the feature film American Violet, on the IMDB here.

On April 17, Samuel Goldwyn Films will release AMERICAN VIOLET, a new film based on true events that occurred in a small Texas town. The film examines how drug laws and enforcement practices target African-Americans, and, how the justice system uses threats and intimidation to steer them towards guilty pleas, regardless of their innocence or the evidence against them. As the film points out, more than 95% of criminal convictions in this country are the result of plea-bargains, not jury trials. While the film is based on a specific case, the story it represents is hardly unique or isolated, and, the film’s release presents an exceptional opportunity to explore how the drug war has become the new Jim Crow.

AMERICAN VIOLET is inspired by the real life story of Regina Kelly, an African-American, single mother of four girls who was arrested in 2000 in a military-style drug raid. The raid resulted in the arrest of nearly 15% of the town’s young black male population for felony cocaine distribution. Kelly was innocent. Her name, along with the names of many others arrested (nearly all African-American), were given to police by a single, highly unreliable informant with personal reasons to antagonize her. Despite Kelly’s innocence, she was urged to plead guilty by her family and even her public defender so that she could return to her children and receive a minimal sentence. A felony conviction, however, would have resulted in the loss of her right to vote and the public assistance programs on which her family depended, not to mention the tainting of her personal reputation and her ability to obtain employment. She chose to maintain her plea of not guilty. The ACLU Drug Law Reform Project came on board to represent her.

In AMERICAN VIOLET, Kelly’s on-screen character is named Dee Roberts (played by newcomer Nicole Beharie) and the ACLU lawyer in the film is played by Tim Blake Nelson. Alfre Woodard, Charles Dutton, Will Patton, Michael O’Keefe and Xzibit also star. The town of Melody and certain other characters and events are fictitious.

Eventually, the charges against Kelly were dropped (as were the charges against most of the others arrested in the same drug raid due to the same informant’s lack of credibility). Yet, she was separated from her children while she was incarcerated, shamed in her small community by being labeled a drug dealer, fired from her job, and had difficulty obtaining employment thereafter; in short, her life was torn apart due to her arrest and her time in jail. Graham Boyd, Director of the ACLU Drug Reform Project represented her in a lawsuit against the county and the District Attorney (among other parties), for damages, which resulted in a settlement.

More importantly, the case resulted in a change in Texas law, whereby now, cases cannot be prosecuted based solely on the claims of a single informant.

In other news, there is still time to call (505-476-2225) or email New Mexico Governor Bill Richardson. He has until tomorrow to sign the bill. Matt Kelley at Change.org provides a sample email:

Dear Gov. Richardson,

I'm writing to urge you to do the right thing and sign HB285, repealing the death penalty in New Mexico. You are at a crucial point in history today, in which the practice of capital punishment is in decline in the United States - one of the last democracies on earth to apply this cruel and unusual punishment. You have an opportunity to become a national leader on this issue by signing the bill and taking a stand in support of human life. I hope you will be remembered as the man who ended this inhuman practice in New Mexico.

I was one of the 6,000 who left a phone message yesterday. I encourage all of our readers to take the time to send an email, or the 30 seconds to make a call and do your part to help abolish the death penalty in New Mexico.

Monday, March 16, 2009

Innocence Project of Florida will Attend and Table at Community Outreach Event

For Immediate Release

World-renowned photojournalist and human rights advocate Scott Langley will be presenting a photo documentary project on the death penalty at Moore Auditorium at Florida State University on Thursday, March 19 at 7 P.M. Langley’s work has been widely distributed in media such as the Associated Press wire, the Washington Post, and Amnesty International publications. His work has been exhibited internationally in Europe and at top-tier universities in the United States such as Cornell and Harvard.

The Innocence Project of Florida (IPF), a Tallahassee-based nonprofit organization that uses DNA testing to overturn wrongful convictions, will be in attendance. IPF will have a table set up with literature and sign-up sheets for visitors who wish to join its mailing list.

Other organizations will also be in attendance. The event is sponsored by several groups concerned with human rights, such as Amnesty International at FSU, the American Civil Liberties Union, and Floridians for Alternatives to the Death Penalty.

“We always support community outreach events like this to spread awareness of the injustice inherent in America’s death penalty, especially when so many death row prisoners have been found to be innocent through DNA testing” said Seth Miller, Esq., Executive Director of the Innocence Project of Florida. “We’re very supportive of Langley’s work. His mastery of this vivid and powerful medium provides an excellent illustration of the horrors involved when the State chooses to take the life of its own citizens.”

The Innocence Project of Florida is a registered 501(c)(3) organization that works to find and free innocent people in Florida prisons.

Scott Langley is a free-lance photojournalist and political community organizer, currently based in Ghent, New York (upstate near Albany). Scott Langley’s photography work has been widespread throughout the world in recent years. Scott’s work has appeared in the Boston Globe, on the Associated Press wire, the Reuters wire, CNN.com, ABC.com, the Washington Post, PBS, Essence Magazine, Amnesty International publications, and much more. Since 2005, his major documentary project on the death penalty has been exhibited by Amnesty International in Germany, Denmark, Norway, the UK at Harvard University in Massachusetts, Cornell University in Ithaca, NY and in Washington DC. Additionally, Scott travels around the country showing his photos and giving talks about various human rights issues.

# # #

View the press release here or download the flyer for this event here.

The biggest story coming across my desk this morning is the news of the New Mexico legislature voting to abolish the death penalty. Governor Bill Richardson is asking for public input on whether to sign the bill, and he has established a hotline to take calls.

The number is (505) 476-2225. According to DKos, "The number will record your request. There is no human being on the phone, just a recorder."

And according to TalkLeft, "If you are near Santa Fe, the Governor is holding meetings with the public tomorrow from 2:30 to 5, first come-first serve...you get five minutes with him to tell him your position."

From a political standpoint, there’s every reason in the world for him to sign the bill and few reasons for him to veto it.

The New Mexico Senate sent House Bill 285, sponsored by state Rep. Gail Chasey, D-Albuquerque, to the governor today on a vote of 24-18. It’s the most significant legislation to head the governor’s desk so far this session.

Richardson put out a statement that says he’s still undecided on whether he’ll sign the bill.

“This is an extremely difficult issue that deserved the serious and thoughtful debate it received in the Legislature,” Richardson said. “I have met with many people and will continue to consider all sides of the issue before making a decision.”

Friday, March 13, 2009

A busy week in the world of criminal justice. Let's see if we can cover the highlights succinctly.

Today, New Mexico's Senate is discussing HB 825, which would abolish the death penalty in the state. The National Coalition to Abolish the Death Penalty (NCADP) will be liveblogging the event.

Yesterday, South Dakota became the 45th state to enact legislation giving inmates the right to post-conviction DNA testing... And then there were five. (Alabama, Mississippi, Oklahoma, Massachusetts and Alaska remain.)

The Obama administration for the first time in Federal court opposed the claims of torture victims at Guantanamo Bay in Cuba, claiming that aliens held at the camp had no due process rights. Not the move we would like to see from the President of Hope™ and Change™.

Joeseph Fears became the eighth person in Ohio to be exonerated by DNA evidence and the 234th nationwhide. "[Ohio] State Sen. David Goodman introduced a bill yesterday seeking improved access to DNA testing, a requirement to record all interrogations and reforms to eyewitness identification procedures."

From the Sentencing Project, Congressmen Steve Cohen (TN-09) and John Conyers (MI-14) have introduced legislation to study the racial disparities in the legal system:

The advisory group would be responsible for gathering data on the presence, cause, and extent of racial and ethnic disparities at each stage of the criminal justice system. Each of the advisory groups would recommend a plan, specific to each district, to ensure progress towards racial and ethnic equality. The U.S. Attorney will consider the advisory group's recommendations, adopt a plan, and submit a report to the Attorney General. The Act requires the Attorney General to submit a comprehensive report to Congress at the end of the pilot program, outlining the results from all ten [pilot] districts and recommending best practices.

In a laudable move, the DA in Harris County, Texas (which contains Houston), has ordered DNA testing in every case where biological evidence is available. A solid step toward the prevention of wrongful convictions, even if there is still much to be done.

Thursday, March 12, 2009

Michael Lambrix has been on death row in Florida for 26 years. Today one of his journals is posted on the Death Row Journals blog here. He expresses sadness and disbelief over Wayne Tompkins' execution on February 11 of this year. Having known Tompkins personally, and referring to him by his Native American name "Grey Cloud," Lambrix explains that Tompkins' conviction was based entirely on circumstantial evidence, and he explains his more general misgivings over death sentences that are obtained all the time with such scant evidence. This was a particularly well-written section:

But nobody can deny that our judicial system is far less then perfect. In recent years at least 25 prisoners on Florida’s death row alone have been found to have been wrongfully convicted and then judicially exonerated and released from prison. Recently the ‘Innocence Project” has announced that just in the last decade they have proven the innocence of at least 200 men through DNA evidence. This undeniable virtual epidemic of injustice should compel any person of moral conscience to question the validity of any conviction based upon wholly circumstantial evidence. The fact is that as a civilized society we owe it to ourselves to insist that if we are going to put a person to death, there can not be any question of guilt. To allow any execution of a person whose guilt [is] in question will inevidently [sic] result in the execution of an innocent person.

The Maryland Senate took hesitant steps recently to assure that death sentences could only be handed down in cases where there was biological evidence, a taped confession, or a taped crime. That is a meaningful step, but it does not go far enough.

Wednesday, March 11, 2009

Sam Sommers is a psychologist at Tufts University in Massachusetts. Today on his blog on Psychology Today, he relates an anecdote about eyewitness IDs, told through an encounter with one of his students:

Not long ago, I had a meeting with an undergraduate from a large lecture course. It was the first time I had spoken with her outside of class, and she asked me what type of research I conduct. When I told her, she responded by saying that my work reminded her of a presentation she sat through during freshman orientation–a presentation concerning psychological perspectives on diversity conducted by two faculty members. From that point forward, our conversation took a surprising turn:

Me: "Right, I was one of those presenters."Student: "No, there was a Black professor and a White professor, but the White guy was someone else."Me: "Actually, that was me. Professor Maddox and I conduct diversity workshops, including that one at freshman orientation."Student: "It was Professor Maddox, but the White professor was another guy."

That's all well and good, but imagine if a conviction had hung in the balance in this case, and that an eyewitness' memory wastheonlyevidence against a suspect that the state could muster. Sommers quickly makes the same realization about the consequences of relying on eyewitness testimony.

Indeed, in the legal domain there are few types of evidence that a jury finds more persuasive than the eyewitness who can take the stand and point directly at the defendant while stating, "absolutely, that's the man I saw." But I just returned from the annual convention of the American Psychology-Law Society, where research presentation after research presentation demonstrated how surprisingly inaccurate and malleable eyewitness evidence can be. And the consequences for crime suspects as well as victims are far greater than the marginal ego blow suffered by the unrecognized professor who learns that he apparently nothing more than an average-looking, generic White guy.

The Innocence Project claims that in over 75% cases of wrongful conviction, mistaken eyewitness testimony is involved. In several of our cases, it was the only evidence against a suspect.

The issue has found its way back into the mainstream with the release of the book Picking Cotton, written by Jennifer Thompson and Ronald Cotton. Thompson, a rape victim, picked Cotton out of a lineup and testified against him at trial, leading to 11 years of wrongful incarceration. Since Cotton's exoneration, the two have reconciled and bonded. 60 Minutes also covered the release of the book in a piece recently, including interviews with Thompson and Cotton.

Of interest, KCBD TV station in Lubbock, Texas just performed an experiment of their own in which they staged a purse-snatching and then had students try to pick the perpetrator out of a lineup. Only 8% of them were successful. Again, imagine that only a handful of students – or one witness – had been present, and then the burden rested on him to pick the perpetrator out of a lineup...

The Innocence Project in New York suggests these policy reforms to undercut the problem of unreliable eyewitness identifications:

Blind administration: Research and experience have shown that the risk of misidentification is sharply reduced if the police officer administering a photo or live lineup is not aware of who the suspect is.

Lineup composition: "Fillers” (the non-suspects included in a lineup) should resemble the eyewitness' description of the perpetrator. The suspect should not stand out (for example, he should not be the only member of his race in the lineup, or the only one with facial hair). Eyewitnesses should not view multiple lineups with the same suspect.

Instructions: The person viewing a lineup should be told that the perpetrator may not be in the lineup and that the investigation will continue regardless of the lineup result. They should also be told not to look to the administrator for guidance.

Confidence statements: Immediately following the lineup procedure, the eyewitness should provide a statement, in his own words, articulating his the level of confidence in the identification.

Recording: Identification procedures should be videotaped whenever possible – this protects innocent suspects from any misconduct by the lineup administrator, and it helps the prosecution by showing a jury that the procedure was legitimate.

Tuesday, March 10, 2009

Contrary to what viewers of "CSI" might believe, not every criminal case can be resolved by DNA evidence. Even so, DNA testing has exonerated more than 200 convicted defendants. This week, the Supreme Court was asked to rule that access to DNA information is a constitutional right. The court must say yes.

Something that is at the heart of this matter is whether "a defendant convicted after a fair trial has a constitutional right to challenge that conviction on the grounds that he is innocent." It seems the answer ought to be yes. A mountain of procedure is in place that allows prisoners to challenge their sentence on technicalities or Constitutional violations, but they are in place as a means to securing a new trial, the object of which is to establish guilt or innocence. It seems to me that, if establishing guilt or innocence is the object of the criminal justice system – which it is – then it ought to be especially sensitive to claims of actual innocence, even after a jury has been convinced, and it is still extremely hard to obtain a new trial with "only" a claim of actual innocence.

Opening the flood gates is a serious concern in some circumstances, and the procedures in place were put in place to preempt just that possibility, by making sure that it's not every Tom, Dick and Harry that can make some noise to challenge their conviction. But, as the LA Times concludes, "The alternative is to say that a state may withhold evidence that could free a wrongly convicted person. That's an inconceivable interpretation of the Constitution's guarantee of due process of law."

Monday, March 9, 2009

In their Friday roundup, Change.org's Criminal Justice blog relates the results of a recent Pew study that found that 1 in 31 Americans are "under the control" of the corrections system – which means they are either in prison, on parole, or on probation. When we cut across different demographics, the numbers are more startling.

One in 89 women are under correctional control, while the number for men is 1 in 18. The numbers by race are: 1 in 45 whites, 1 in 27 hispanics, and, shockingly, 1 in 11 blacks. Florida ranks in the second quintile among states in the percentage of its citizens under correctional control.

[Bill Dillon is] tall, maybe six-two, and speaks clearly and plainly in a laconic voice of his experiences behind bars and in the courtroom, of his life in general. His speech is marked by candor, not rancor. He does not appear to be bitter. He’s adapted readily to the use of cell phones, devices which didn’t exist (except in crazy inventors’ feverish imaginations) when he went in. At a restaurant or among a crowd of people, he’s always looking around, alert, amazed. That he can find his way around Brevard County, where he still lives, is another source of constant surprise: whole neighborhoods have sprung up in his absence; new shopping malls exist where, a quarter-century ago, the wind blew across empty fields and marshes.

What he’s been through (and how well he went through it) boggles the mind. That he’s nowhere near the first — and certainly not the last — to have gone through it feels, well, impossible.

Thursday, March 5, 2009

Maryland's much-storied recent efforts to abolish the death penalty have been tempered into compromise legislation that cleared the state Senate yesterday.

ANNAPOLIS — A legislative effort to repeal Maryland’s death penalty appears all but over for this year, as the Senate on Wednesday approved a compromise measure that preserves capital punishment but would impose strict evidentiary requirements before it could be handed down.

Under the amended bill, SB 279, the death penalty could be imposed only if the murderer’s conviction is based on DNA evidence; a videotaped, voluntary confession; or a video recording that conclusively links the defendant to the murder. The death penalty could not be imposed for convictions based solely on eyewitness testimony. A final vote on the bill is scheduled to be held on Thursday.

Following the Senate’s action, attention shifts to the House of Delegates, which will use the Senate measure as its starting-off point in considering the death penalty’s fate this year, said House Speaker Michael E. Busch, D-Anne Arundel. In light of the Senate’s actions, a repeal effort in the House will presumably not succeed this year, he said.

The bill is laudable for a few reasons. For one, the bill elevates DNA to its rightful place in policy making: serving as an ultimate probative test, with unparalleled certitude. Conversely, the bill dramatically undercuts the myth of witness identification accuracy: the Senate has admitted that enough doubt surrounds that form of evidence that a person's life should not rest on another's faulty memory. Third, it requires videotaping of confessions.

Unfortunately, it looks unlikely that the death penalty will be abolished this year in the state, as had been hoped, but I am content with the progress represented by this bill.

Wednesday, March 4, 2009

It is a scan of a death warrant issued in North Carolina for Perrie Simpson, who was executed on January 20, 2006. The state marked the cause of death as homicide, a formal admission that they had murdered one of their own citizens. I didn't realize before that that was the practice. Now there can be no argument.

On Monday the Supreme Court heard oral arguments in the case of District Attorney's Office for the Third Judicial District, et al. v. Osborne out of Alaska. I have blogged before about Osborne; it's a hugely important case both for the work we do here freeing innocent people and for Americans in general, as it could affirm a Constitutional right for inmates to acquire DNA testing.

But some of the reports are less than promising. It is unfortunate that lawyers for the Obama administration, for example, have taken such a hardline stance against the right to DNA testing. (Some of that might be due to the fact that they have inherited the case from the previous administration.)

The new deputy Solicitor General for the Obama administration urged the Supreme Court today to go slow in giving prisoners a right to seek DNA testing that could free them.

"Our position is there is no constitutional right to DNA," Neal Katyal, a former Georgetown law professor, told the justices.

..."It is a no-cost proposition for the defendant," he said, and could "open the floodgates" to legal suits seeking new tests of old evidence.

An article in McClatchy paints a somewhat grim picture that makes it seem at least like this will be a serious nail-biter.

Supreme Court justices appeared closely divided Monday over claims by an Alaska inmate that the Constitution guarantees a right to post-conviction DNA testing.

The court's most conservative members are clearly aligned against inmate William Osborne, who was convicted of assaulting a prostitute known only as K.G. The court's most liberal members sounded sympathetic to expanded testing. At most, the odds appear to favor a narrow decision.

A decision is not due for months in the case, but we will continue to watch for developments.

Tuesday, March 3, 2009

Billy Joe Holton could become 2nd Man Exonerated from Duval County in Two Years

The Innocence Project of Florida (IPF) last week filed a Motion for a New Trial on behalf of Billy Joe Holton after DNA results revealed another man’s semen on the State’s key piece of evidence. If the motion is successful, Holton will become the nation’s 233rd DNA exoneree.

“These DNA results show that there was another man’s semen on the blanket used to cover the victim while she was raped,” said Seth Miller, Executive Director of IPF. “Since the victim said she had not had sex in six months and that she washed her blanket once a week, this means that the semen on the blanket could only come from the perpetrator.”

Holton and his former co-defendant Tim Smith were charged with raping a Jacksonville woman in the presence of her seven year-old son. The men became suspects after a jailhouse snitch implicated them in the crime. Holton was indicted with this crime despite the fact that the victim’s son repeatedly told police that Holton was not one of the perpetrators and that the victim told others she could not identify her attackers.

“The victim’s eventual photo ID of Holton was dubious considering that she was covered in the blanket throughout the attack, she had told her neighbor she did not get a good look at the men, and her own son told police that Holton was not the man who hurt his mom,” said IPF Staff Attorney Bobbi Madonna. “The DNA results from the blanket now prove what we suspected all along—Holton is actually innocent of this crime.”

On the eve of trial, the jailhouse snitch disappeared. The State, faced with having to drop the charges, offered Smith a sweetheart deal—testify against Holton and receive a reduced sentence. Smith, facing multiple life sentences if convicted, decided to take the deal.

“Smith had originally planned on putting on an alibi defense before agreeing to testify against Holton,” explained Miller. “Holton received three consecutive life sentences while Smith received time served. This is just another reason to trust science over testimony in a case where the witness has everything to gain.”

IPF called on the State Attorney’s office to work with them to see that justice is done. “We have exonerative DNA evidence, and it is our hope that the State will partner with us to bring an end to Mr. Holton’s wrongful incarceration,” said Miller.

The Innocence Project of Florida (IPF) is a 501(c)(3) organization dedicated to finding and freeing innocent people in Florida prisons. IPF and Jacksonville criminal defense attorney William Sheppard represented Billy Joe Holton to obtain his DNA testing and continue to represent him to achieve his release from prison.

Monday, March 2, 2009

Brevard resident William Dillon, who served over 27 years for a crime he did not commit, will make his first address to the public since his exoneration in November 2008, joining the Innocence Project of Florida (IPF) on stage at the Gleason Center, Florida Tech campus, 6:00pm, Saturday, March 7, 2009 at the 5th Annual Progressive Celebration hosted by the Space Coast Progressive Alliance and co-sponsored by WFIT 89.5FM.

Dillon will join IPF Assistant Director Toni Shrewsbury during an award ceremony recognizing the work that IPF has done since their inception in 2003, resulting in the release of ten wrongfully incarcerated Floridians who, through DNA testing, were proven factually innocent of the crimes for which they were convicted. In addition to obtaining the freedom of these individuals, IPF's work has resulted in widespread recognition of the need to reform the state criminal justice system, where fundamental problems have been identified in the areas of eyewitness identification, false confessions, evidence preservation, crime lab oversight, access to DNA testing, and exoneree compensation. IPF has received over 2000 inquiries/requests for assistance in proving the innocence of individuals currently incarcerated.

Dillon's 27 years in jail represent the longest time served by any of the 232 individuals exonerated nationwide as a result of DNA test results. Dillon was exonerated when his innocence of a 1981 murder was proved by DNA evidence that came as a result of a 2007 motion filed by IPF and attorney Mike Pirolo. Dillon was subsequently released November 18, 2008.

The state's case against Dillon was based largely on the testimony of an admitted perjurer who had a sexual liaison with the case's lead investigator during the investigation, a fraudulent dog scent expert, a partially blind eyewitness and an individual whose own charges in a rape case were dropped in exchange for his testimony, which included numerous details at odds with known facts in the case.

Both Dillon and Shrewsbury will be joining Progressive Celebration attendees at a pre-event reception greeting Bob Edgar, President and CEO of Common Cause, a 400,000 member nonprofit, nonpartisan citizen lobby for reforms that make government at all levels more open, honest, and accountable, and re-engages citizens with civic responsibility. Edgar will then keynote the celebration with a talk addressing the challenges facing the Obama administration in meeting its promises for education, health care and energy policy. Edgar will specifically address key reforms that have taken hold in other states and how such reforms can be pursued in Florida. Celebration attendees will have the opportunity to question Edgar about Fair Districting, public campaign financing, and other fundamental reforms directed toward government accountability and the campaign/election process. Edgar's talk will follow a live music performance by Evan Greer, RiotFolk musician, performing original songs of citizen empowerment, sustainability and social justice. Concerned citizens of all ages are invited and urged to attend.

Doors open at 6pm to the event, which benefits both WFIT 89.5FM, a public radio station serving South Brevard and Indian River County, and the Space Coast Progressive Alliance, a local grassroots citizen lobby for progressive public policies.

Tickets are available from WFIT 89.5FM (321-674-8950 or www.wfit.org).

Space Coast Progressive Alliance (SCPA) is a Florida nonprofit corporation supported by membership dues, donations, and event ticket sales. Nonpartisan by strongly progressive and politically active, SCPA encourages citizen engagement in the political process and seeks to advance progressive public policy at the local, state and national level. Click here to visit their website.

The recent report from the National Academy of Sciences tore into traditional forensic techniques used to analyze cases of arson, among other sciences. But it is not the first time that fire science has met resistance from experts in the field, or scientists outside it. An article in Miller-McCune magazine has a lengthy article detailing arson science's somewhat troubled history.

Even though much of the science has been discredited, Phoenix Attorney Larry Hammond points out the difficulties of getting a conviction overturned.

"Our legal system is designed to foreclose post-conviction review," [Hammond] noted, "and it does frustrate, and has frustrated, many of these cases." Attorney Walter Reaves, who works with the Innocence Project of Texas, agreed: "You have to convince a court that it is (newly discovered evidence), and then you have to convince them to actually listen and hear it."

DNA is the undisputed gold standard for exonerations, a virtually unassailable magic bullet. But arson convictions are a new frontier for exoneration work, and they are qualitatively different. If you find a bullet or knife in a dead man's back, no one disputes that a crime has taken place. Fires, however, are not so simple.

I found this following quote especially egregious:

Arson is the only crime for which someone can receive the death penalty based on the testimony of an expert witness whose education ended with high school.

And the article discusses possible suggestions for fixing the problem.

Common themes emerge when discussing reforms. One hot topic is the routine dependence on negative corpus evidence —simply put, investigators rule out electrical faults and exploding coffee pots, for example, rather than rule in evidence of how a fire did in fact start. So rather than a more accurate description of "cause undetermined," fires are often called arsons based on investigation by exclusion.

To veteran investigator Patrick Kennedy, that practice is unethical and immoral. "I don't know what it is, so it must be arson?" he said. "That is a pretty poor reason to kill somebody."